The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,

Meeting on 23 July 1999

Having concluded its
consideration of communication No. 616/1995 submitted to the Human Rights
Committee by Mr. Zephiniah Hamilton under the Optional Protocol to the
International Covenant on Civil and Political Rights,

Having taken into account all
written information made available to it by the author of the communication,
and the State party,

Adopts the following:

VIEWS UNDER ARTICLE 5, PARAGRAPH
4, OF THE OPTIONAL PROTOCOL

1. The author of the
communication is Mr. Zephiniah Hamilton, a Jamaican citizen who at the time
of submission of his communication was awaiting execution at St. Catherine
District Prison, Jamaica. He claims to be a victim of violations by Jamaica
of articles 6; 7; 9, paragraph 3; 10 and 14, paragraphs 1, 3 (c) and 5, of
the International Covenant on Civil and Political Rights. He is represented
by a counsel of the London law firm, Macfarlanes. The author's death
sentence has been commuted.

THE FACTS AS SUBMITTED BY THE
AUTHOR:

2.1 The author was
arrested on 28 March 1989 and charged with the murders of Lynval Henry and
Robert Bell, which had occurred on 13 October 1988. The preliminary enquiry
was held in May 1990. On 24 December 1991, the author was found guilty as
charged and sentenced to death. The Court of Appeal of Jamaica dismissed his
appeal on 12 October 1992. A further application for special leave to appeal
to the Judicial Committee of the Privy Council has not been filed and there
has been no appeal to the Supreme (Constitutional) Court of Jamaica.

2.2 The author was
convicted by the jury of murder as being part of a joint enterprise; the two
victims were attacked in the evening, in the presence of two other men, one
of whom gave evidence that he recognised the author, as a person known to
him from childhood, and the other of whom said that he had seen the author
on previous occasions. The author's defence, based on an alibi and mistaken
identity (supported by an unsworn statement) was rejected by the jury.

2.3 At the time of the
original communication the author was under sentence of death. His appeal to
the Court of Appeal of Jamaica was dismissed two days before the Offences
against the Persons (Amendment) Act 1992 came into force; the communication
also included a detailed submission about the classification procedure under
that Act, leading to a complaint of violations of articles 6 and 14
paragraph 1, and 5, of the Covenant, with full supporting argument. The
commutation of the author's sentence by the Governor-General has made it
unnecessary to deal with these issues in detail.

THE COMPLAINT

3.1 Counsel explains that
the author was shot, in the lower area of his spine by a police officer
after a hearing by the Magistrate as part of the Preliminary Enquiry. He
had, for other reasons, been in hospital prior to his arrest. He was then
readmitted to hospital, because of the injury to his back, where he spent
three months between his arrest and his trial. As a long term outcome, as a
result of this, he is paralysed in both legs and is unable to move from his
cell unless he is carried by other inmates. He is also unable to remove his
slop bucket from the cell himself and he has therefore been obliged to pay
other inmates to remove it. This means that sometimes it has to remain in
his cell until he has obtained the necessary funds. The author complained
several times to the superintendent about the conditions in which he is
kept, to no avail. Furthermore, the London solicitors wrote twice to the
Prison Governor on Mr. Hamilton's behalf, requesting him to ensure that the
author is given proper assistance to enable him to leave his cell for some
period during each day, and also to make proper arrangements for his slop
bucket to be removed from his cell daily. To date no reply has been
received. Counsel refers to a 1993 report from a non-governmental
organisation in which it is stated that, although the Parliamentary
Ombudsman seems to make a genuine effort to address the problems in the
prisons of Jamaica, his office does not have sufficient funding to be
effective, and the Ombudsman has no powers of enforcing his recommendations
which are non-binding. Therefore, counsel argues, the office of the
Parliamentary Ombudsman does not provide an effective remedy in the
circumstances of the author's case. It is submitted that the author's rights
under articles 7 and 10 of the Covenant have been violated, because of the
prison authorities' failure to take into account the author's paralysed
condition and to make proper arrangements for him. The lack of proper care
is also said to be in violation of the UN Standard Minimum Rules for the
treatment of Prisoners.

3.2 Counsel points out
that the author was arrested on 28 March 1989, but was not tried until 24
December 1991, and that it took a further ten months before his appeal was
heard and dismissed. The delay of thirty-three months between arrest and
conviction is said to amount to a violation of articles 9, paragraph 3, and
14, paragraph 3 (c).

4. On May 11, 1995 the
communication was transmitted to the State party, with a request to submit
to the Committee information and observations in respect of the
admissibility of the communication. As of July 1997 no reply had been
received.

THE COMMITTEE'S ADMISSIBILITY
DECISION

5.1 During its 60th
session the Committee considered the admissibility of the communication.

5.2 The Committee noted
with concern the absence of co-operation from the State party on the matter
under consideration. In particular, it observed that the State party had
failed to provide information on the question of admissibility of the
communication. On the basis of the information before it the Committee found
that it was not precluded from considering the communication under article
5, paragraph 2 (a), of the Optional Protocol.

5.3 The Committee noted
that the State party had not contested the admissibility of the author's
allegations about the conditions of his detention at St. Catherine District
Prison which have been aggravated by his handicap. In the circumstances, the
Committee found that the author and his counsel had met the requirements of
article 5, paragraph 2 (b), of the Optional Protocol in this respect, and
made no finding about the complaint under articles 6 and 14, paragraphs 1,
and 5 (as having been overtaken by the commutation of the death sentence),
but considered that the allegations might raise issues under articles 10,
paragraph 1 and also articles 9, paragraph 3, and 14, paragraph 3 (c), of
the Covenant.

STATES PARTY'S MERITS
OBSERVATIONS AND THE COUNSEL'S COMMENTS:

6.1 In a submission dated
28 September 1998, the State party informed the Committee that with respect
to the allegation of violations of article 9, paragraph 3, and article 14,
paragraph 3, (c) due to the delays between arrest and trial and trial and
appeal, it denied that those periods were so prolonged as to constitute
undue delay, since a preliminary enquiry was held over several sessions
between arrest and trial thereby mitigating any potential delay.

6.2 With regard to the
alleged breach of article 10 , paragraph 1, due to the circumstances of the
author's detention and the difficulties he is experiencing because of his
disability, the State party contends that since the author is no longer on
death row the conditions in which he is now detained will facilitate his
movements more effectively. This is subject to the fact that the prison is
not designed to accommodate disabled persons, therefore special arrangements
have to be put in place to assist these persons.

6.3 The State party also
responded to points concerning the classification process.

7.1 By submission dated 22
December 1998, counsel reiterates his affirmation that articles 9, paragraph
3, and 14, paragraph 3, (c) have been violated since there was a 33 month
delay between the author's arrest and his trial, he rejects the State
party's contention that a preliminary enquiry heard within that period
mitigates any "potential delay".

7.2 Counsel has provided a
copy of the "report of investigation" in respect of the author's complaint
against special constable Mendez, which reflects contradictory versions of
the shooting incident in which the author was injured. It also contains a
note from the Police Public Complaints Authority recommending that
proceedings be initiated against Special Constable Mendez for wounding with
intent.

7.3 With regard to the
State party's information that since the author is no longer on death row
and that therefore the conditions of his detention have improved, counsel
argues that the author continues to need someone to slop out for him and
since what money he had was confiscated by a prison guard he is in an
untenable position. Counsel reiterates that the author does not receive a
low fat diet as prescribed by the doctor. He also points out the author's
fear of being transferred to the prison hospital since he could become the
victim of a homosexual assault and his disability would impede him from
defending himself.

7.4 Furthermore, counsel
reaffirms that no special arrangements have been put in place to accommodate
the author in prison. In this respect he points out that since the author's
disability is so severe that he will never present a threat to society he
should be transferred to a rehabilitation centre.

EXAMINATION OF THE MERITS:

8.1 The Human Rights
Committee has considered the present communication in the light of all the
information made available to it by the parties, as provided for in article
5, paragraph 1, of the Optional Protocol.

8.2 With regard to the
author's complaints with respect to his conditions of detention at St.
Catherine's District Prison, the Committee notes that the author has made
very precise allegations, relating to the difficulties he has encountered as
a disabled person ( see paragraph 3.1 supra). All of this has not been
contested by the State party, except to say that measures would have to be
put in place to accommodate the author as a disabled person in prison. In
the Committee's opinion, the conditions described in para 3.1, are such as
to violate the author's right to be treated with humanity and with respect
for the inherent dignity of the human person, and are therefore contrary to
article 10, paragraph 1.

8.3 The author has claimed
a violation of articles 9, paragraph 3, and 14 paragraph 3 (c) in that he
was not tried without undue delay, since there were 33 months between the
author's arrest on 28 March 1989 and his trial on 24 December 1991.The
Committee notes that the State party contends that since a preliminary
hearing was held in that period this constituted a mitigating circumstance
and consequently rejects any violation of the Covenant. Nevertheless, the
Committee is of the view that the mere affirmation that a delay does not
constitute a violation is not sufficient explanation. The Committee
therefore finds that 33 months between arrest and trial does not comply with
the minimum guarantees required by the Covenant. Consequently, and in the
circumstances of the case the Committee finds that there has been a
violation of articles 9, paragraph 3 and 14, paragraph 3 (c).

9. The Human Rights
Committee, acting under article 5, paragraph 4, of the Optional Protocol to
the International Covenant on Civil and Political Rights, is of the view
that the facts before it disclose a violation of article 10, paragraph 1, 9,
paragraph 3, and 14, paragraph 3 (c), of the Covenant.

10. I n accordance with
article 2, paragraph 3 (a), of the Covenant, the State party is under an
obligation to provide Mr. Hamilton with an effective remedy, entailing
compensation and placement in conditions that take full account of his
disability. The State party is under an obligation to ensure that similar
violations do not occur in the future.

11. On becoming a State
party to the Optional Protocol, Jamaica recognized the competence of the
Committee to determine whether there has been a violation of the Covenant or
not. This case was submitted for consideration before Jamaica's denunciation
of the Optional Protocol became effective on 23 January 1998; in accordance
with article 12(2) of the Optional Protocol it continues to be subject to
the application of the Optional Protocol. Pursuant to article 2 of the
Covenant, the State party has undertaken to ensure to all individuals with
its territory or subject to its jurisdiction the rights recognized in the
Covenant and to provide an effective and enforceable remedy in case a
violation has been established. The Committee wishes to receive from the
State party, within ninety days, information about the measures taken to
give effect to the Committee's Views. The State party is requested to
publish the Committee's Views.